Wednesday, December 30, 2009

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For months, Oscar Rothenberg and I puzzled over what really happened to Jane Doe that night. Clearly, something did. But what? At whose hands? And where? Also, why would she accuse Eric of something he hadn’t done?

On the issue of what happened, it seemed to fit our growing body of facts that Doe had not been raped, per se, but engaged in something rough with someone known to her, someone who’d seen her with Eric and was angry or jealous or inebriated enough to squeeze her throat to the point of causing bruising.

This conclusion was bolstered, ironically, by the SART nurse, Judy Malmgren. On May 31, 2007 - three and a half months after Eric’s arrest - she published an essay about rape and alcohol for The Santa Barbara Independent that can reasonably be inferred as a rebuke of both Jane Doe and the prosecution. “Alcohol, when consumed in sufficient quantities,” she wrote, “can have a profound sedating effect, including impaired judgment, loss of inhibition, unconsciousness, and impaired memory or recall,” all of which make such cases “very difficult to prosecute.”

Malmgren appeared as a prosecution witness, a particularly friendly one. But she had written words that might have cast further doubt over Barron’s case if defense counsel Sanger had confronted her with them during cross-examination regarding her testimony about the half-inch vaginal tear she’d noted during Doe’s SART exam: “The forensic exam,” she had written, “may yield evidence of sexual intercourse, even injury, but this is not definitive for sexual assault; there’s not an expert in the land who can look at an injury and qualitatively state that it is the result of sexual assault.”

For Sanger, forcing the SART nurse who had examined Doe to admit that she had no idea whether Doe had actually been raped might have gone a long way toward establishing reasonable doubt. That a downloaded printout of the essay was found in his own files makes his failure to raise the issue with Malmgren inexplicable.

So who had attacked Jane Doe? The question may never be answered conclusively, but as investigators we only had to know with certainty that it had not been Eric, a fact that became axiomatic once we agreed that the evidence did not support any part of Doe’s story about being on the beach.

The only plausible scenario was that Doe left Eric’s with someone known to her and walked east on Del Playa, toward Camino Pescadero, 6613, and 6681. Had she been alone, she would have called a friend in order to avoid looking like a “loser,” as she’d explained to Barron.

The person she was most likely to have walked with was Benjamin Randall, who Eric said had followed them home. Randall would testify that, jealous or not, he hadn’t followed her or even stopped to watch her when he called. No, he insisted, he’d kept walking in the other direction, curious only about who Doe was with and where they were going. And though it was only 11:45 p.m. - early by Isla Vista’s standards, especially on a Friday night - after seeing Doe he’d abruptly changed plans and decided not to go back to his friend’s party. Instead, he testified, he turned north up Camino Pescadero to walk home. And go to bed. Alone. Where no one saw him.

Sometimes even the preposterous turns out to be true, and this story may also be, but it has always left me unconvinced. Which explains why the “where” of the assault is in many ways the linchpin of Eric’s innocence.

Independently of each other, Oscar and I concluded that whatever happened to Doe happened in Camino Pescadero park. It is largely unlighted, reaches more than 40 yards back from busy Del Playa, and provides a frequent haven for couples who want to couple. In several places the ground is covered by a sand-like grit which appears visually to match the small quantity of what was found, during the SART exam, between Doe’s labia.

We, of course, can’t prove with certainty that the park was where the incident happened, but our conclusion seemed to be confirmed one day after Oscar focused on something Doe had said to Barron in their April 11 interview; it was an answer buried by other details on previous readings: “Do you have any recollection of him injuring you on your butt?” Barron had asked, referring to the mark on Doe’s left buttock, judged by the prosecution’s expert, Norman Sperber, to be a bite.

“I don’t. No, I don’t remember that,” Doe said.

I had spent hours staring at a screen capture of that perfectly elliptical mark, trying to imagine what might have caused it and taking my permission to do so from Judge Hill’s “you don’t have to be an expert” pronouncement.

Unlike the mark on Doe’s face, the one on her left buttock was defined at the perimeter, not reddened in the interior. At the motion for new trial, prosecution bite-mark expert Gregory Golden compared it to a “smoke ring” and conceded, as Barron said, that it “was not of sufficient quality : to draw any real evidentiary value : other than it was a bite mark.”

In her closing remarks, Barron noted that Doe had remembered lying on her right side when she came to on the beach, so “her left buttock would have been exposed” - as if the assailant had decided to leave something of a calling card before fleeing. This struck me as pure fantasy, something else invented - like the 250-yard beach walk in the dark - to spackle over a fissure in the story.

And where was the DNA from the biter’s saliva? There wasn’t any. For this part of the anatomy, Barron couldn’t explain, as she had with the cheek, that Doe’s copious tears of anguish had washed away everything useful.

No, there was something about the buttock mark for which imagination had so far been unable to conjure a credible explanation. Then Oscar called while I was driving to Santa Barbara for a visit with the young man who had seen Eric alone after midnight, when Jane Doe was allegedly being raped on the beach.

“Listen to this,” Oscar told me. “Barron asked her whether she remembered anything about her butt. [Doe] said no, she didn’t, not a thing, no memory whatsoever. But she did say - here, I’ll read it verbatim: ‘Like and I like I thought I like fell on something. Like a pole or something. That was like circular. Like I didn’t know at all what that was ‘cause I had no idea where that came from.’” Oscar paused. “So it’s a pole or something,” he said. “Something circular, maybe something metal. There aren’t any poles on the beach.”

“Well, there might be driftwood,” I said. “But it wouldn’t have left anything so uniform.”

“Right,” said Oscar, suggesting I take another look around Camino Pescadero park for a pole.

After meeting with the alibi witness, I visited the park and saw something in the middle of its largest grassy area that immediately gave me the chills: a sprinkling Rainbird attached to a long hose coupled to an irrigation box in the ground, out of which stuck an ordinary hose handle that had the identical elliptical shape as the mark - with seemingly identical proportions. Ridges along the handle’s perimeter would account for the uniformity of the impressions on the buttock mark. But was the handle the same size as the mark?

I measured it and snapped photos, which I texted to Oscar. When he called seconds later and said, “My God, I think that’s it,” I tracked down an Isla Vista Parks and Rec supervisor, who explained that this park isn’t irrigated by automatic sprinklers. At intervals, someone from his department retrieves the hose, removes the cap from the irrigation box, which is otherwise flush with the ground, attaches an adapter, then affixes the handle to a bib and turns on the water. I asked him what the chances were that this setup might be left out over a weekend.

“Happens all the time,” he said. “We work Monday through Thursday. Lots of weekends it’s left out, usually by accident.”

Now it was easy to imagine someone pushing Doe backward, or her tripping, and falling square onto the handle - a scenario that also explains her left wrist sprain: even drunk, she would have involuntarily put her hand down to break the fall.

The only problem with this scenario was that the handle, though accurately proportional to the buttock mark, measured a bit longer and wider than the photos of the mark taken 10 days after the incident. Then I remembered Golden’s explanation that bites measure smaller than the teeth marks which made them when the skin that was bitten is curved, such as on a cheek - and, presumably, a butt cheek. The actual surface distance in three dimensions (picture a tennis ball) measures longer than it appears on a 2-D surface (like a photo), akin to the difference between the crow flying and the car driving.

“The image is going to shrink in two dimensions,” Golden testified, later explaining that he blew up the photo of the bite mark on Doe’s face 28 percent to account for “shrinkage that the tissue : rebounded after being bitten.”

So I added 28 percent to the size of the buttock mark. Result? A match of the hose handle. The two were congruent.

Is that scientific? Maybe not. But I do have common sense. The odds that this buttock mark - for which the only explanation offered by the victim was her memory of falling on a “pole” - had been caused by anything else so utterly congruent seem incalculable. And then there’s the fact that this so-called bite is a different shape than the cheek bite, which is unquestionably a bite. Were I on a jury that had seen the hose handle presented as evidence, I believe I would question Dr. Sperber’s testimony that the defendant’s teeth had inflicted both of these marks - especially if I also heard testimony from a geologist who concluded that residue on the jacket Doe wore that night had not come from an Isla Vista beach.

To this day, there are large smudges on the jacket’s back, sleeve, and shoulder. Doe said they were “dirt” that came from Eric’s knocking her onto the beach. Dirt, not sand. And dirt it is. Dirt of the kind that’s found on land, not beaches.

Anyway, that was my impression after seeing a photo of the jacket and then viewing it in the courthouse evidence room, where it and the other exhibits from trial are stored. Having walked, run, slept, camped, sunbathed, played ball, wrestled, and otherwise enjoyed myself at dozens of sandy beaches on four continents in all kinds of weather without such “dirt” ever adhering to my skin or clothing, I considered this further validation that Doe’s story was as addled as her memory.

To verify that conclusion, Rothenberg and I contacted a prominent UCSB geologist, Dr. Oliver Chadwick. After viewing the jacket, Dr. Chadwick himself walked the length of both the beach and Del Playa between El Embarcadero and Camino Pescadero, stopping several times to test the soil and sand. He used a variety of fabrics that he’d brought along, including a synthetic that approximated the jacket’s composition.

Over a two-hour period, he pointed out areas along Del Playa that he predicted would leave the sort of residue seen on the jacket - including near the Camino Pescadero park irrigation valves. To prove it, he rubbed a damp fabric into the ground and produced residue that appeared to be the same as what’s on the jacket. He repeated this with similar success at other places along the street - but had no success anywhere on the sand.

Speaking judiciously, Dr. Chadwick said he could not be certain where the residue came from; it could’ve come from any number of places along Del Playa, as well as locations unexplored by us. Without equivocation, though, he excluded the sand as a source of the residue found on the jacket - and he swore out a declaration asserting that the jacket had not been soiled in a manner consistent with the prosecution’s story.

There is, of course, a way to determine with certainty whether Chadwick is correct, and that’s to scrape a sample of the residue for laboratory analysis. Doing so in advance of a court-ordered evidentiary hearing requires the consent of the prosecutor.

Mary Barron has refused the request.

***

This leaves the question of why Jane Doe accused Eric Frimpong of raping and biting her. Over time, we considered various motives: to deflect attention away from her drunkenness, which violated the terms of her probation; to avoid losing her social standing among her circle of friends, most of whom seemed to be males from her high school who might ostracize her if she accused one of their own; or to pacify her girlfriends, who’d insisted that she go to the emergency room even when she didn’t want to - and once there, the hospital was obliged to call law enforcement, making this a situation that got beyond her control.

Eventually we dismissed all those reasons and more. For any of them to be true would require a lack of conscience that neither of us was prepared to ascribe to this young woman, regardless of her admitted history as an alcohol abuser and, according to her SART report, as a depressive.

What therefore seemed most probable was that she’d experienced another of the blackouts that she admitted having, and subsequently constructed a narrative from what she did remember. The rest was backfilled with suggestions when they arose - as with Detective Kies’s contention that she’d been bitten, not struck by a hand.

Dr. Kim Fromme, a professor of clinical psychology at the University of Texas who is one of the country’s leading experts on the impact of alcohol intoxication on cognitive processes, reviewed Jane Doe’s testimony, studied the lab reports on Doe’s blood-alcohol level (BAC), and filed a declaration with Eric’s appellate attorneys.

She concluded: “This progression from [Doe’s] belief that she was hit, not bitten, to her rather vivid testimony of how it felt when she got bitten is in my opinion an example of how memory can be constructed following a blackout, rather than an example of [Doe’s] remembering what happened to her more accurately each time she was questioned about the bruise on her face. The construction of memories is not necessarily a malicious attempt to lie, but is rather a psychological process whereby people attempt to make sense of their own experience in the absence of clear memories. Alterations in memories can be prompted by repeated questioning, as in the case with [Doe], or by provision of misleading information.

“Whereas I cannot say with absolute certainty that [Jane Doe] was experiencing alcohol-induced blackouts during the night of the alleged incident, her BAC, her drinking history, and her inability to recall large segments of time (between approximately midnight and 5 a.m.) is entirely consistent with the experience of alcohol-induced blackouts. It seems likely that she experienced both fragmentary blackouts (whereby she remembers only parts of the evening, like playing beer pong, but not how she got to the beach) and an en block blackout (whereby she remembers almost nothing between the time she was in her dorm room, after friends picked her up, until the time of the SART exam).

“Consistent with the psychological tendency to construct memories, it is also plausible that [Doe] used information from events she could remember (e.g., meeting Mr. Frimpong around midnight), or from what people may have told her, to construct an explanation for the experiences she could not remember due to alcohol-induced blackouts. If [Doe] was experiencing fragmentary and en block blackouts between midnight and 5:00 a.m., her self-report of events that transpired is unreliable.”

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Joel Engel is the bestselling author of more than a dozen books. As a journalist, he has written on a wide variety of subjects for many national publications, and contributed frequently to the New York Times. You can contact him at joelengel@yahoo.com